Term Paper: Executive Privilege After Vietnam

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[. . .] (Dorf). Nixon resisted on grounds of executive privilege. (Dorf).

According to the Court, there is a "valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." (Dorf). The Court noted that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." (Dorf).

Nonetheless, the Justices concluded that the executive privilege is not absolute. (Dorf). Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. (Dorf). Two weeks after the Court ordered President Nixon to divulge the tapes and records, Nixon complied with the order. (Dorf). Four days later, Nixon resigned in one of the greatest political scandals in history. (Dorf).


Invoking executive privilege, Vice President Dick Cheney refuses to disclose details of meetings he held last year with Enron officials.

Amar). Should Congress ultimately decide to press the issue, Cheney would be wise to yield. One of Cheney's primary concerns is that United States v. Nixon and later lower court opinions have eroded executive privilege.

Amar). In a system of separated powers, each branch must have some internal space, i.e., a separate house, to deliberate free from the intermeddling of other branches. (Amar). Senators must be free to talk candidly with colleagues and staff in cloakrooms; judges need similar freedom to converse with each other in judicial conferences and with clerks in closed chambers; jurors deliberate in secret; and for similar reasons Presidents need room for confidential conversations with staff. (Amar).

Cheney's situation raises unique complications. (Amar). He is neither the President nor a cabinet or subcabinet official wholly within the executive branch. (Amar). Constitutionally, he is also an officer of the legislature, i.e., the Senate's presiding officer. (Amar). Enron officials at these meetings were themselves not governmental officers of any sort. (Amar). Nor was the topic here some purely executive issue like an appointment or a prosecution or pardon; rather it was what legislation to propose to Congress. (Amar).

It is a stretch to think the Enron officials themselves may assert "executive privilege." (Amar). Since Enron itself may be directly subpoenaed, it logically follows that Cheney may be likewise subpoenaed to provide the same information. (Amar). WWhen a client talks to her lawyers with others in the room, she generally is deemed to have waived attorney client privilege; so too when penitents speak to priests outside the confessional seal. (Amar). By similar logic, executive privilege is waived, or at least weakened, when executive officials meet with outsiders. (Amar).


The pendulum of power in the government swings back and forth between Congress and the president. As a consequence of the Vietnam War and Watergate, it swung far toward the Congress. In the past 30 years, it has swung at least part way back. Where it goes from this point forward is still in play.

However, the president and vice president would be well advised to remember the basic power of Congress to appropriate, or not appropriate, the money without which the government cannot function. If Congress is fully determined, and presses matters to a showdown, Congress will win. Historically, most of the information the executive branch tries to withhold becomes known sooner or later in one way or another. Viewed as a practical matter of politics or public relations and quite apart from legal niceties, a president or cabinet officer is better off if the information is disclosed early and graciously rather than late and grudgingly.

Works Cited

Amar, Akil Reed. "Cheney, Enron, and the Constitution." Time Magazine. Retrieved 8/05/02 at http://www.time.com/time/nation/article/0,8599,198829,00.html

Dorf, Michael C. "A Brief History Of Executive Privilege, From George Washington Through Dick Cheney." Retrieved 8/05/02 at http://writ.news.findlaw.com/dorf/20020206.html

Holt, Pat M. "Steady the Privilege Pendulum." Retrieved 8/05/02 at http://www.csmonitor.com/2002/0404/p13s01-coop.html

Marshall, Joshua Micah. "Bush's Executive-Privilege Two-Step." Retrieved 8/05/02 at http://www.salon.com/politics/feature/2002/02/07/bush_records/index.html

Scheer, Robert. "Hiding Behind a Veil of Executive Privilege?" Retrieved 8/05/02 at http://www.commondreams.org/views02/0521-06.htm

Executive Privilege: One Down, One to Go." A Boston Herald Editorial. Retrieved 8/05/02 at http://www.bostonherald.com/news/opinion/edta03032002.htm [END OF PREVIEW]

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Executive Privilege After Vietnam.  (2002, August 6).  Retrieved June 17, 2019, from https://www.essaytown.com/subjects/paper/executive-privilege-vietnam/7097923

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"Executive Privilege After Vietnam."  Essaytown.com.  August 6, 2002.  Accessed June 17, 2019.